In contrast to ownership of physical objects ( items within the meaning of § 90 BGB ), intellectual property is an exclusive right to an intangible good , such as a work of art or a technical invention.
Intellectual property is “property” within the meaning of Art. 14 GG and Art. 1 of the 1st Additional Protocol to the European Convention on Human Rights (ECHR). It is expressly protected in Art. 17 (2) of the Charter of Fundamental Rights of the European Union (GRCh). The guarantees provided for property ownership in Art. 17 Para. 1 CFR should also apply to intellectual property. According to the will of the Convention, intellectual property encompasses not only literary and artistic property but also patent and trademark law as well as related property rights.
In terms of historical and comparative law, however, there is no uniform understanding of the term.
There were inventions in antiquity, such as B. that of the Archimedean screw or the gear by Ktesibios . However, the idea of protecting intellectual property was unknown until the 14th century, because the point of view of the utilization of ideas was less important in craft production. Nevertheless, today's term plagiarism is said to be traced back to the Roman poet Martial , who is said to have insulted his poet colleague Fidentius as plagiarius ' robber ' , 'slave trader', 'seller of souls' after he had wrongly passed off his poems as his own .
Feudalism and Absolutism
In the Middle Ages there was only a rudimentary right to intellectual property. However, in individual early cultures there were temporally and spatially limited usage rights, for example to recipes or guild secrets . If there were no prohibitions, imitation was allowed. For example, before the invention of printing , a book could be copied. The processing of a material by many different artists and authors was the norm, as was the adoption or change of songs and pieces of music by other musicians.
Before the invention of printing, the creator was rewarded not through the sale of works, but through rewards that were given without any legal obligation. The artists mostly had an elevated social position, were supported by a patron (often a sovereign), or were organized in monasteries or guilds and thus economically secure. Even then, plagiarism was frowned upon, and authors feared the distortion of their works when they were copied by copying them. If an author did not want his text to be changed, he made do with a book curse - Eike von Repgow , the author of the Sachsenspiegel , wished anyone who falsified his work to have leprosy on their necks.
Here the legal-historical observation comes into contact with an intellectual-historical observation: also the citation practice in those times was much different, less strict than it is today. The rank of an artist was measured more by his craft skills than by the originality of his creations .
As early as the late Middle Ages, around the 14th century, privileges were granted by the respective rulers, in some cases also by free imperial cities , which allowed the beneficiary alone to use a certain procedure. These were issued through a public document ( Latin litterae patentes , open letter ). An example is the trip to the Netherlands by Albrecht Dürer to protect its engravings by Emperor Charles V .
Often, however, the purpose of the privilege was less to exclude others than to be exempt from guild rules or other regulations. As the first statutory regulation, Venice introduced a patent law as early as 1474, according to which an inventor could obtain temporary protection against imitation by registering with an authority.
Even with the advent of book printing in the 15th century , the focus was initially on technical reproduction privileges, which often required considerable investment ( printer privileges ). These were often only granted for certain works, which at the same time gave the sovereign the possibility of censorship . It was not until the 16th century that authoring privileges appeared in parallel . Most of the time, however, the publisher acquired the right to reprint by purchasing the manuscript and obtaining permission from the author to publish it for the first time. The first copyright law, the British Statute of Anne (1710), was mainly oriented towards the protection of the publisher.
Change in the 18th century
The postulates developed into private property in the 16th and 17th centuries , for example by John Locke in the theory of work , were transferred to literature, art and technical inventions in the 18th century . Just as every person is allowed to decide about their own thoughts and actions, their creations should also be protected as the product of their intellectual work and thus as their "intellectual property". In particular, Nikolaus Hieronymus Gundling and Justus Henning Böhmer differentiated between ownership of the embodiment of the work, such as manuscripts, books, devices on the one hand and the right to intellectual property, i.e. the work or invention, on the other. Gundling's 1726 writing is considered the first monograph on intellectual property.
According to the natural law point of view, copyright should last forever. The subsequent copyright laws ( France 1791, Prussia 1837) only provided for a period of protection for a certain time after the author's death ( post mortem auctoris ).
The large continental European codifications of the Civil Code (1804) and the Civil Code (1900) know in their Roman legal tradition only title to tangible property ( § 903 , § 90 BGB). Regulations on intellectual property were left to the special laws or even completely rejected with regard to freedom of trade , namely the historical law school around Friedrich Carl von Savigny .
Concept of "intellectual property"
A common distinction is made between copyright and industrial property rights .
Copyright arises informally on the basis of the actual act of creation, while industrial property rights, on the other hand, only arise through a registration act, such as filing with the German Patent and Trademark Office . That is why the term intellectual property is only used in Italy and Spain for copyrighted artistic and creative works ( proprietà intellettuale or propiedad intelectual ). In French legal theory, despite the codification of the Code de la propriété intellectuelle of 1992, it is still controversial whether there can be any intellectual property ( propriété ). In § 353 of the General Civil Code (ABGB), however, Austrian property law describes property in the objective sense as “everything that belongs to someone, all of their physical and immaterial things”.
Since it was systematized by Josef Kohler and Rudolf Klostermann in the second half of the 19th century, German private law speaks collectively of " intellectual property law ". The German legislator uses the term of intellectual property in § 5 Abs. 1 Nr. 3 UWG .
Although the natural law concept of intellectual property seemed to prevail over other concepts despite certain deficiencies, no clear tendency can now be recognized. One of the leading legal journals on the subject in Germany is called Commercial Legal Protection and Copyright (GRUR), the title of specialist attorney is limited to commercial legal protection ( specialist attorney for commercial legal protection ) and only includes copyright references to commercial legal protection for the special knowledge to be proven for the award (§ 14 f. Specialist Lawyer Regulations). The Max Planck Institute for Intellectual Property and Competition Law was called the "Max Planck Institute for Intellectual Property, Competition and Tax Law" until December 31, 2010. It was founded in 1966 as the “Max Planck Institute for Foreign and International Patent, Copyright and Competition Law”.
The early international conventions were still separately dedicated to the protection of “industrial property” ( Paris Convention for the Protection of Industrial Property (PVÜ) of 1883) and the protection of the rights of authors to their works of literature and art ( Berne Convention for the Protection of Works of literature and art ((R) BÜ) from 1886).
By combining the two areas were in 1967 at the institutional level by the Office for the management of the agreements in the World Intellectual Property Organization ( World Intellectual Property Organization - WIPO , Organization Mondiale Propriété Intellectual - OMPI ) was transferred. With regard to the task of the new organization to promote the protection of intellectual property worldwide, the term intellectual property is comprehensively defined and encompasses “scientific discoveries, protection against unfair competition and all other rights arising from intellectual activity commercial, scientific, literary or artistic field ”.
Since the Convention of the World Trade Organization Agreement on Trade-Related Aspects of Intellectual Property Rights ( Trade-Related Aspects of Intellectual Property Rights ; Aspects des droits de propriété intellectuelle qui touchent au commerce ) of 1994, the concept of intellectual property and its translations in the international legal language established.
In European primary law , the term was first mentioned in the Treaty of Amsterdam ( Art. 207 TFEU ). In secondary law , the regulations on the Community trade mark (now a European Union trade mark ), the Community plant variety right and the Community design created uniform rights across the Community . Before that, the European Court of Justice (ECJ) also counted the financial aspects of copyright law and the protection of geographical designations of origin for industrial and commercial property within the meaning of Art. 30 EGV / Art. 36 TFEU.
Intellectual property in German law
The copyright law , a certain level of creativity provided mainly protects the writers and artists and wants a proper recognition and remuneration of their intellectual works (texts, compositions, pictures, etc.) guarantee. The patent and trademark law , however primarily concerns the commercial benefits and the commercial exploitation of an invention (novelty) or brand in the interest of producers and consumers.
For industrial property therefore only the intellectual property rights are counted, not copyright, since it concerns the protection of intellectual creations that do not come from the artistic and the commercial sector.
Goods and services not protected by proprietary rights are in the public domain and are subject to freedom from imitation under competition law .
The following very different and competing rights are summarized under the term "intellectual property":
- the copyright to personal intellectual creations in literature, science and art
- copyright related rights ( §§ 70 ff. Copyright Act)
- of scientific editions and posthumous works
- of photographs
- of the performing artist
- of the manufacturer of a phonogram
- of the broadcaster
- of the database manufacturer
- of the press publisher
- Intellectual Property Rights
- technical industrial property rights
- Supplementary protection certificates
- Utility model
- Plant variety protection (plant breeds)
- Semiconductor protection or protection of topographies
- non-technical industrial property rights
- Brands (formerly trademarks)
- Geographical indications of origin
- registered designs ( designs and models )
- Business names ( company identifier and work title )
- technical industrial property rights
- Trade secrets
- Performance protection under competition law
In order to commercially exploit intellectual property rights, simple or exclusive rights of use can be granted by the rights holder ( license ). The licensor can grant an exclusive right or grant several simple licenses to several different users, as is the case with certain Creative Commons licenses , which largely dispense with copyright. Legally, the simple license is predominantly viewed as a form of legal lease.
Under criminal law, intellectual property is protected in particular in ancillary criminal law, for example against copyright infringement ( Section 106 UrhG ), technology theft or product piracy .
At the European level, the so-called Enforcement Directive regulates the measures, procedures and legal remedies required for civil and criminal enforcement of intellectual property rights, including industrial property rights, in order to guarantee equivalent protection of intellectual property in the entire internal market .
The idea of a uniform (monistic), non-transferable copyright in the sense of moral rights is no longer considered to be up-to-date. It is still oriented towards the economically insignificant individual creator. In the modern post-industrial economy, however, intellectual works would have acquired a meaning that things were assigned as means of production during the industrial revolution . The contractual copyright protection implemented, for example, in the US-American copyright law is therefore preferable, since it adequately takes into account the current economic aspects of copyright law and allows marketing similar to commercial property rights.
In Germany, this idea has only just begun to be realized in §§ 88 ff. UrhG for film works, and the scientific discussion about digital rights management is still in flux. A level of protection comparable to that for the linking of exploitation and personal rights in non-transferable copyright law has not yet been adequately investigated.
In recent years, more and more political movements have emerged that reject the term “intellectual property” in principle. The pirate movement in particular has led to the founding of several national pirate parties in Europe , which also led to parliamentary participation in connection with the conviction of the operators of the BitTorrent tracker The Pirate Bay .
- World Copyright Agreement (1952, rev. 1971)
- International Agreement on the Protection of Performing Artists, Manufacturers of Phonograms and Broadcasting Companies (Rome Agreement, KstlSchA) (1961)
- Geneva Convention for the Protection of Sound Carriers Manufacturers Against the Unauthorized Duplication of Their Sound Carriers (TontrSchÜ) (1971)
- WIPO Copyright Treaty (WCT) (1996)
- WIPO Performances and Phonograms Treaty (WPPT) (1996)
- Madrid Agreement on the International Registration of Trademarks (MMA) (1891)
- Protocol to the Madrid Agreement on the International Registration of Trademarks (PMMA) (1989)
- Madrid Agreement on the Suppression of False or Misleading Indications of Origin on Goods (MHA) (1891)
- Hague Agreement on the International Deposit of Industrial Designs (HMA) (1925)
- International Convention for the Protection of New Varieties of Plants (UPOV) (1961)
- Treaty on International Cooperation in the Field of Patents (Patent Cooperation Treaty - PCT) (1970)
- Treaty on Intellectual Property in Respect of Integrated Circuits
- Vienna Agreement on the Protection of Typographical Characters and their International Deposit (not yet in force)
European Patent Organization (EPO)
- Convention on the Grant of European Patents (European Patent Convention - EPC)
Eurasian Patent Organization (EAPO)
- Eurasian Patent Convention (EAPÜ)
European Union (EU)
- Directive 87/54 / EEC on the legal protection of the topographies of semiconductor products
- Directive 89/104 / EEC on the approximation of the laws of the member states relating to trademarks ( trademark directive )
- Directive 91/250 / EEC on the legal protection of computer programs
- Directive 98/44 / EC on the legal protection of biotechnological inventions (biotechnology directive )
- Directive 98/71 / EC on the legal protection of designs
- Directive 2001/29 / EC on the harmonization of certain aspects of copyright and related rights in the information society
- Directive 2004/48 / EC of the European Parliament and of the Council of April 29, 2004 on measures and procedures for the protection of intellectual property rights
- Directive 2016/943 / EU on the protection of trade secrets
- Agreement on the European Patent for the Common Market (Community Patent Convention ) (not in force)
- Law on Copyright and Related Rights ( Copyright Act - UrhG )
- Law regarding the copyright in works of the visual arts and photography ( Art Copyright Act - KunstUrhG / KUG ) (right to one's own image, otherwise largely replaced by the Copyright Act)
- Patent Act ( PatG )
- Law on the legal protection of design ( Designgesetz, DesignG )
- Utility Model Act ( GebrMG )
- Plant Variety Protection Act ( SortSchG )
- Law on the protection of the topographies of microelectronic semiconductor products ( Semiconductor Protection Act - HalblSchG )
- Law on the protection of trademarks and other trademarks Trademark law (trademarks, business names, geographical indications of origin) and trademark ordinance
- Law against Unfair Competition ( UWG ) (business secrets and additional performance protection)
- Law on the extension of industrial property rights ( Extension Act ) (extension of rights to the accession area )
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- ^ Johann Gottlieb Fichte : Proof of the illegality of the book reprint. A reasoning and a parable. 1793
- ↑ Harald Steiner: The author's fee. Its evolution from the 17th to 19th centuries (= book Scientific contributions from the German book archive Munich . Band 59 ). Harrassowitz, Wiesbaden 1998, ISBN 3-447-03986-8 , pp. 35 .
- ↑ Information on Gundling. Gundling Professorship for Civil Law, Intellectual Property Law and Competition Law University of Halle-Wittenberg, accessed on May 12, 2012 . .
- ↑ Legal and Reasonable Covering of an I [uris] C [onsul] TI, who is impartial, From the Shameful Reprint of Other Corresponding Books , 1726.
- ↑ Lück, Heiner: Nicolaus Hieronymus Gundling and his "Legal and Reasonable Bedencken ... About the Shameful Reprint of other appropriate books". In: Fundamentals and basic questions of intellectual property. Mohr Siebeck, Tübingen 2008, p. 11, p. 20 ff.
- ^ Friedrich Carl von Savigny : Notes on the law on the reprint. In: Elmar Wadle, Friedrich Carl von Savigny's Contribution to Copyright, 1992.
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- ↑ § 353 ABGB, jusline.at
- ↑ Josef Kohler: The right to author: A civilian treatise. Ihering's yearbooks 18 (1880), 129, 329 ff.
- ↑ Alexander Peukert: Intellectual property (general) . In: Jürgen Basedow, Klaus J. Hopt, Reinhard Zimmermann (Hrsg.): Concise dictionary of European private law . tape I , 2009, p. 648–652 ( uni-frankfurt.de [PDF]).
- ↑ Specialist lawyer regulations in the version of January 1, 2008.
- ↑ Regulation (EC) No. 40/94
- ↑ Regulation (EU) 2015/2424
- ↑ Regulation (EC) No. 2100/94
- ↑ Regulation (EC) No. 6/2002
- ↑ Rs. 55 and 57/80 - GEMA , Coll. 1981, p. 147
- ↑ Case C-3/91 - Exportur , Coll. 1992, I-5529
- ^ Sebastian Deterding, Philipp Otto: Intellectual property. Copyrights, patents, trademarks in the German legal system Federal Agency for Civic Education bpb, January 15, 2008.
- ↑ Hans-Jürgen Ruhl: Introduction to commercial legal protection Chamber of Commerce and Industry Frankfurt am Main, accessed on January 17, 2016.
- ↑ Elisabeth Keller-Stoltenhoff: German copyright law after its amendment from an IT legal point of view (Part 5: Protection of databases) March 9, 2010.
- ↑ Directive 2004/48 / EC of April 29, 2004 on the enforcement of intellectual property rights
- ↑ Protection of intellectual property rights . In: EUR-Lex .
- ↑ Cyrill P. Rigamonti: Intellectual property as a concept and theory of copyright. UFITA series Volume 194, Baden-Baden, 2001.
- ^ Ansgar Ohly : Intellectual property? In: Legal journal . 2003, p. 545 ff.
- ↑ Reto M. Hilty : Non-transferability of copyright authorizations: protection of the author or dogmatic old wives' tale? In: Festschrift for Manfred Rehbinder . 2002, p. 259 ff.
- ^ Stefan Bechtold: From copyright to information law. Implications of Digital Rights Management. Munich 2001.
- ↑ Pirate Party: There is no such thing as intellectual property. (No longer available online.) In: hinesehen.net (down from October 2014). May 25, 2009, archived from the original on June 30, 2014 ; accessed on February 21, 2016 (interview).
- ↑ Swedish Pirate Party makes a leap into the European Parliament. on: heise.de , June 7, 2009.